Opinion
The self-represented plaintiff, Leszek M. Schoenbom, appeals from the judgment of dissolution rendered by the trial court. He claims that the court (1) abused its discretion in allocating parenting time
The court’s comprehensive memorandum of decision contains the following relevant facts. The parties married in Waterbury on September 19, 2000, and three children were born of the marriage. Following the subsequent breakdown of the marriage, the plaintiff commenced a dissolution action in 2010. In response, the defendant filed an answer and a cross complaint. A three day trial followed in February, 2012. On March 2, 2012, the court rendered judgment dissolving the parties’ marriage, finding that it had broken down irretrievably.
As part of the judgment of dissolution, the court made numerous factual findings and fashioned various orders. The court found, inter alia, that “[o]n September 18, 2000, the parties signed the antenuptial agreement. The plaintiff was represented by counsel and the defendant had the opportunity to review the agreement with independent counsel but knowingly waived that right. The parties were fully aware of the rights which they both chose to waive and there was fair and reasonable financial disclosure between them. The antenuptial agreement is not found to be unconscionable as of the time of the marriage or the time of dissolution. The antenuptial agreement is valid and enforceable, incorporated herein by reference thereto and included within the judgment of this court.” With respect to child support, the court found “ [b] ased on the parties’ net income and the child support and arrearage guidelines regulations, the court finds the presumptive amount of child
After ordering joint legal custody of the minor children with primary physical custody vested in the defendant, the court adopted, as an order of the court, “the parenting plan set forth in the guardian ad litem’s proposed orders dated February 16, 2012.” That plan provides in relevant part: “The [plaintiff] shall have parenting time with his son on Monday from after school through 8:00 p.m. and with his daughters on Wednesday from after school through 8:00 p.m. The [plaintiff] shall have parenting time with all three children every other weekend from Saturday at 9:00 a.m. through Sunday at 6:00 p.m. Ingrid will return to [the defendant] on Saturdays at 6:00 p.m., Isabelle and Albert shall spend the night through Sunday at 6:00 p.m.” From that judgment, the plaintiff appeals.1
I
The plaintiff first claims that the court abused its discretion in allocating parenting time between the parties. “Our standard of review of a trial court’s decision regarding custody, visitation and relocation orders is one of abuse of discretion. ... It is within the province of the trial court to find facts and draw proper inferences from the evidence presented. . . . Further, [t]he trial court has the opportunity to view the parties first hand and is therefore in the best position to assess the circumstances surrounding a dissolution action, in which such personal factors as the demeanor and attitude of the parties are so significant.” (Internal quotation marks omitted.) McKechnie v. McKechnie, 130 Conn. App. 411, 421, 23 A.3d 779, cert. denied, 302 Conn. 931, 28 A.3d 345 (2011).
The court particularly credited the testimony and proposed visitation order of Iglesias. The court emphasized that “the involvement of the [guardian ad litem] continued after [Ment] and Humphrey completed their evaluations, and he was privy to the changing relationship between the daughters of the couple and the plaintiff . . . .” The court found that “the [plaintiffs] parenting time was changed in the fall of 2011, by agreement of the parties .... The [plaintiff] had been spanking the [daughters], they were upset by being spanked, and they did not want to stay with him overnight. [The plaintiff] was not spanking [his son]. The [plaintiff] said that [his son] never lied or did anything bad to the girls, but the girls were being bullies to [the son]. The defendant ... is concerned that the [plaintiffs] disparate treatment of the children will affect
“[I]t is well established that the evaluation of a witness’ testimony and credibility are wholly within the province of the trier of fact.” Szczerkowski v. Karmelowicz, 60 Conn. App. 429, 434, 759 A.2d 1050 (2000). “Credibility must be assessed . . . not by reading the cold printed record, but by observing firsthand the witness’ conduct, demeanor and attitude. ... An appellate court must defer to the trier of fact’s assessment of credibility because [i]t is the [fact finder] . . . [who has] an opportunity to observe the demeanor of the witnesses and the parties; thus [the fact finder] is best able to judge the credibility of the witnesses and to draw necessary inferences therefrom.” (Internal quotation marks omitted.) Blum v. Blum, 109 Conn. App. 316, 329, 951 A.2d 587, cert. denied, 289 Conn. 929, 958 A.2d 157 (2008). We conclude that the court was well within its discretion to credit the testimony of the guardian ad litem and to adopt his proposed visitation order.
II
The plaintiff contends that the court improperly concluded that the parties’ antenuptial agreement was not unconscionable. We disagree.
The following additional facts, as found by the court, are relevant to this claim. The parties met in the spring of 1999. The defendant recently had graduated from dental school and was in a residency program at St. Mary’s Hospital in Waterbury. The plaintiff was in the business of acquiring, renovating and supervising rental properties. At that time, the plaintiff had assets exceeding $1.5 million in value, whereas the defendant had $1000 in assets.
At the behest of the plaintiff, the parties entered into an antenuptial agreement prepared by the plaintiffs
The defendant concluded her dental residency in July, 2001, and thereafter held various positions as a dentist. In September, 2003, she bought a dental practice in West Hartford. As the court found, “[t]he dentist from whom she acquired the practice was Russian speaking and his clients were primarily Russian speaking. The defendant speaks Russian and Polish and was therefore uniquely qualified to acquire and build the practice—which she has done. She expanded to two offices, the other being located in Plainville. She is clearly a driven and motivated person.” At the time of dissolution, the defendant had “amassed assets having avalué of approximately $1.5 million since the marriage; many of the assets are related to the operation of her dental practice.” The court further found that the plaintiffs assets had increased from $1.5 million to approximately $2 million, noting that “[h]e owns more properties as of the time of the divorce than he did at the time of the marriage . . . .”
The plaintiff now claims that the antenuptial agreement prepared by his attorney and entered into by the defendant at his behest “should be held unenforceable because it was unconscionable at the time of enforcement. . . . [T]he enormity of the defendant’s success was certainly not within the contemplation of the parties at the time the agreement was entered into . . . and enforcement of the agreement would work an injustice.” The trial court was not persuaded by that argument, and neither are we.
As our Supreme Court has explained, “[a]n antenup-tial agreement is a type of contract and must, therefore,
“[T]he party seeking to challenge the enforceability of the antenuptial contract bears a heavy burden. . . . This heavy burden comports with the well settled general principle that [c]ourts of law must allow parties to make their own contracts. ... It is established well beyond the need for citation that parties are free to contract for whatever terms on which they may agree. . . . Whether provident or improvident, an agreement moved on calculated considerations is entitled to the sanction of the law . . . .” (Citations omitted; internal quotation marks omitted.) Id., 169. Accordingly, to “render unenforceable an otherwise valid antenuptial agreement, a court must determine: (1) the parties’ intent and circumstances when they signed the antenup-tial agreement; (2) the circumstances of the parties at the time of the dissolution of the marriage; (3) whether those circumstances are ‘so far beyond’ the contemplation of the parties at the time of execution; and (4) if the circumstances are beyond the parties’ initial contemplation, whether enforcement would cause an injustice.” Id., 168; see also General Statutes § 46b-36g. That inquiry is conducted pursuant to the plenary standard of review. Id., 167.
As previously noted, the court found that, at the time the agreement was executed, the plaintiff had $1.6 million in assets compared to the defendant’s $1000 in assets. At the time of dissolution, the plaintiffs assets had grown to approximately $2 million; the defendant had assets totaling $1.5 million. In its memorandum of decision, the court concluded that “[d]espite the change in net worth of the [defendant], the court does not find the enforcement of the antenuptial agreement to be unconscionable .... The [plaintiff] at the time of the marriage knew his fiancee was completing her dental residency and she was a dentist at the time of the marriage. The increase in her income and a resultant increase in her net worth were certainly foreseeable.”
We concur with that assessment. At the time the parties married, the defendant was beginning her career as a dentist. The subsequent increase in her net worth was contemplated by the plain terms of the agreement, hence the inclusion of language providing that “each party shall keep and retain sole ownership, control and enjoyment of all property, real and personal, the unrealized appreciation and proceeds thereof, accumulations and accretions added thereto, now owned or hereafter acquired and howsoever acquired by him or her, free and clear of any claim of the other during marriage or upon termination of the marriage by death
As a result, the “circumstances of the parties at the time of the dissolution of the marriage”; Crews v. Crews, supra, 295 Conn. 168; were not so far beyond the contemplation of the parties as to render the agreement unconscionable. Accordingly, the plaintiffs claim fails.
III
The plaintiff also argues that the court failed to consider the defendant’s earning capacity in rendering its child support order.3 “In fashioning its financial orders, the court has broad discretion, and [j]udicial review of a trial court’s exercise of [this] broad discretion . . . is limited to the questions of whether the . . . court correctly applied the law and could reasonably have concluded as it did. ... In making those determinations, we allow every reasonable presumption ... in favor of the correctness of [the trial court’s] action. . . . That standard of review reflects the sound policy
The plaintiff claims that the court considered the defendant’s stated income exclusively and failed to consider her earning capacity, in contravention of General Statutes § 46b-84 (d). That statute requires the court, in crafting a child support order, to “consider the age, health, station, occupation, earning capacity, amount and sources of income, estate, vocational skills and employability of each of the parents, and the age, health, station, occupation, educational status and expectation, amount and sources of income, vocational skills, employability, estate and needs of the child.” General Statutes § 46b-84 (d). His claim is belied by the memorandum of decision before us, in which the court acknowledged that the earning capacity of the parties was a relevant consideration. The court prefaced its financial orders by noting that it “may under appropriate circumstances . . . base financial awards on the earning capacity of the parties rather than on actual
In articulating specific orders at the conclusion of its memorandum of decision, the court stated with respect to the issue of child support: “Based on the earning capacity of the plaintiff . . . the court finds his gross weekly income to be $4000, and his net weekly income to be $2624. The [defendant’s] gross weekly income is $4867, and her net is $2753. Based on the parties’ net income and the child support and arrearage guideline regulations, the court finds that the presumptive amount of child support payable by the plaintiff . . . to the defendant ... is $335 a week. After hearing the testimony of the parties and reviewing the financial affidavits, the earnings of the respective parties and the deviation criteria set forth in . . . the child support and arrearage guidelines regulations, the court orders the [plaintiff] to pay the sum of $335 a week for child support.”4 As this court has recognized, although a court is obligated under Connecticut law to consider earning capacity, “the decision whether to deviate from the guidelines on the basis of that criterion is left to the court’s sound discretion.” Gilbert v. Gilbert, 73 Conn. App. 473, 483, 808 A.2d 688 (2002). We further emphasized that a trial court’s decision not to deviate from the guidelines does not, a fortiori, “demonstrate a failure to consider that criterion.” Id.
In the present case, the court heard detailed testimony from the parties and reviewed their respective financial affidavits. The court expressly considered the
IV
The plaintiff lastly claims that the court erroneously calculated his own earning capacity in rendering its child support order. Distilled to its essence, his claim is that the court improperly declined to credit his testimony and documentary evidence.
As earlier noted, this court cannot pass on issues of credibility and must defer to the trier of fact’s assessment thereof. Blum v. Blum, supra, 109 Conn. App. 329. The court, as trier of fact in the present case, deemed the plaintiffs evidence and testimony lacking in credibility. Specifically, the court found: “The [plaintiffs] compliance with mandatory disclosure required under Practice Book § 25-325 has been abysmal. At the start of
The judgment is affirmed.
In this opinion the other judges concurred.
1.
Pursuant to Practice Book § 67-13, the guardian ad litem for the minor children filed a statement adopting the brief of the defendant in this appeal.
2.
Ment and Humphrey completed written reports in the spring of 2011, which were admitted into evidence as exhibits at trial.
3.
In addition, the plaintiff claims that the court erroneously calculated the defendant’s gross weekly income. We disagree. The court expressly found the defendant’s financial affidavit credible, which set forth a gross weekly income of $4867. Although the defendant testified that she collected approximately $500 per week in rental income, she testified that she did not include that amount in the rent section of her financial affidavit because she also paid rent that was not included on the affidavit, and that she has various rental expenses that likewise were not included. She explained that her rental receipts were handled by an accountant who calculated both rental income and expenses. When the income exceeded expenses, the accountant placed the surplus in a business checking account. The defendant testified that any such rental income was reflected on her financial affidavit under that bank account. The plaintiff, who appeared pro se throughout the proceedings and cross-examined the defendant, never inquired further as to the specific amount of rental income surplus typically received, if any. On the record before us, we thus cannot conclude that the court’s finding was clearly erroneous.
4.
Among the criteria for deviation set forth in § 46b-215a-3 of the Regulations of Connecticut State Agencies is the parent’s earning capacity.
5.
Practice Book § 25-32, titled “Mandatory Disclosure and Production,” provides: “(a) Unless otherwise ordered by the judicial authority for good cause shown, upon request by a party involved in an action for dissolution of marriage or civil union, legal separation, annulment or support, or a postjudgment motion for modification of alimony or support, opposing parties shall exchange the following documents within thirty days of such request:
“(1) all federal and state income tax returns filed within the last three years, including personal returns and returns filed on behalf of any partnership or closely-held corporation of which a party is a partner or shareholder;
“(2) IRS forms W-2, 1099 and K-l within the last three years including those for the past year if the income tax returns for that year have not been prepared;
“(3) copies of all pay stubs or. other evidence of income for the current year and the last pay stub from the past year;
“(4) statements for all accounts maintained with any financial institution, including banks, brokers and financial managers, for the past 24 months;
“(5) the most recent statement showing any interest in any Keogh, IRA, profit sharing plan, deferred compensation plan, pension plan, or retirement account;
“(6) the most recent statement regarding any insurance on the life of any party;
“(8) any written appraisal concerning any asset owned by either party.
“(b) Such duty to disclose shall continue during the pendency of the action should a parly appear. This section shall not preclude discovery under any other provisions of these rules.”
6.
On the issue of large quantities of cash, the court in its memorandum of decision found that the plaintiff “acknowledged having a bag of money in his possession in 2010, but he believes [that] the [defendant] took it from his car at the time he was appearing in court in New Britain on criminal charges.” The court noted that “[w]hile not in evidence, as the information was presented in the form of a question [the plaintiff] posed to the [defendant] during his cross-examination of her, the [plaintiff] asked if she had found ‘$146,000 in cash in old folded hundreds’ in a bag. He also made reference to the bag of money at other times during his questioning and his
7.
Consistent with our Supreme Court’s recent pronouncement in Tanzman v. Meurer, 309 Conn. 105,70 A.3d 13 (2013), the court determined the specific dollar amount of the plaintiffs earning capacity.